Mississippi Advisory Opinions April 17, 2009: No. 2009-00184 (April 17, 2009)

No. 2009-00184.

Dear Mayor Williams:

Attorney General Hood has received your request for an official opinion and it has been assigned to me for research and reply.

In your letter you state that only four candidates qualified for the office of alderman and ask what procedures should be followed in this election.

Our understanding is that Gunnison is a code charter municipality with the mayor - alderman form of government. We further understand that all candidates run as independent candidates, there are no wards and all candidates run at large.

Applicable law

Miss. Code Ann. Section 23-15-857 (1972) reads in pertinent part as follows:

(2) When it shall happen that there is any vacancy in an elective office in a city, town or village the unexpired term of which shall exceed six (6) months, the governing authority or remainder of the governing authority of said city, town or village shall make and enter on the minutes an order for an election to be held in such city, town or village to fill the vacancy and fix a date upon which such election shall be held. Such order shall be made and entered upon the minutes at the next regular meeting of the governing authority after such vacancy shall have occurred, or at a special meeting to be held not later than ten (10) days after such vacancy shall have occurred, Saturdays, Sundays and legal holidays excluded, whichever shall occur first. Such election shall be held on a date not less than thirty (30) days nor more than forty-five (45) days after the date upon which the order is adopted.

Notice of such election shall be given by the municipal clerk by notice published in a newspaper published in the municipality. Such notice shall be published once each week for three (3) successive weeks preceding the date of such election. The first notice to be published at least thirty (30) days before the date of such election. Notice shall also be given by posting a copy of such notice at three (3) public places in such municipality not less than twenty-one (21) days prior to the date of such election. One (1) of such notices shall be posted at the city, town or village hall. In the event that there is no newspaper published in the municipality, then such notice shall be published as provided for above in a newspaper which has a general circulation within the municipality and by posting as provided for above. In addition, the governing authority may publish such notice in such newspaper for such additional times as may be deemed necessary by the governing authority.

Each candidate shall qualify by petition filed with the municipal clerk by 5:00 p.m. at least twenty (20) days before the date of the election and such petition shall be signed by not less than the following number of qualified electors:

(a) For an office of a city, town or village having a population of one thousand (1,000) or more, not less than fifty (50) qualified electors.

(b) For an office of a city, town or village having a population of less than one thousand (1,000), not less than fifteen (15) qualified electors.

No qualifying fee shall be required of any candidate, and the election provided for herein shall be held as far as practicable in the same manner as municipal general elections.

The candidate receiving a majority of the votes cast in said election shall be elected. If no candidate shall receive a majority vote at the election, the two (2) candidates receiving the highest number of votes shall have their names placed on the ballot for the election to be held two (2) weeks thereafter. The candidate receiving a majority of the votes cast in said election shall be elected. However, if no candidate shall receive a majority and there is a tie in the election of those receiving the next highest vote, those receiving the next highest vote and the candidate receiving the highest vote shall have their names placed on the ballot for the election to be held two (2) weeks thereafter, and whoever receives the most votes cast in such election shall be elected.

Should the election to be held two (2) weeks thereafter result in a tie vote, the candidate to prevail shall be decided by lot, fairly and publicly drawn under the supervision by the election commission with the aid of two (2) or more qualified electors of the municipality.

The clerk of the election commission shall then give a certificate of election to the person elected, and shall return to the Secretary of State a copy of the order of holding the election and runoff election showing the results thereof, certified by the clerk of the governing authority. The person elected shall be commissioned by the Governor.

However, if nineteen (19) days prior to the date of the election only one (1) person shall have qualified as a candidate, the governing authority, or remainder of the governing authority, shall dispense with the election and appoint that one (1) candidate in lieu of an election. In the event no person shall have qualified by 5:00 p.m. at least twenty (20) days prior to the date of the election, the governing authority or remainder of the governing authority shall dispense with the election and fill the vacancy by appointment. The clerk of the governing authority shall certify to the Secretary of State the fact of the appointment, and the person so appointed shall be commissioned by the Governor.

Analysis and Conclusion

In accordance with Miss. Code Ann. Section 21-15-1 (1972), the term of office for candidates elected in the June 2, 2009, general election begins on the first Monday of July following the general election, which this year is July 6, 2009.

A vacancy will therefore occur on the board of aldermen on that date. The new board must declare the vacancy and call a special election to fill said vacancy in accordance with Section 23-15-857.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General